- (1.) THIS petition has been filed under Article 227 of the Constitution of India for quashing the order dated 23.6.08 passed by the learned 6th Addl. District & Sessions Judge, Dhanbad in Title Appeal No. 87 of 2007.
(2.) THE appellant filed an application under Order XLI Rule 27 for filing two documents namely, the Drug Licences issued in the years 1975 and 1985. In the application it was alleged that these documents are the public documents and the same could not be filed during the course of final hearing of the suit before the trial court as the document could not be traced. The documents are very essential for the disposal of the appeal and, as such, the said application may be allowed and may be taken on the record as evidence. The said application was contested by the respondents and they stated that these documents were in the knowledge of the appellant and the aforesaid documents were issued in the year 1975 and 1985 but the appellants did not file these documents before the trial court and he has not shown the due diligence in spite of the knowledge of the existence of the documents and in spite of the knowledge of the document he did not file it before the trial court. The respondent prayed to dismiss the application.
(3.) THE learned appellate court after hearing the parties, dismissed the application holding that the documents pertains to the years 1975 and 1985 and these documents were well within the knowledge and as such, the documents cannot be admitted in appeal during hearing of the appeal and the application was rejected. Feeling aggrieved of the said order, this petition has been preferred. I heard the learned counsel for the parties and perused the record. Before appreciating the rival contentions of the parties, Order XLI Rule 27(1 )(aa) runs as under is quoted below: '' "Production of additional evidence in Appellate Court. ''(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if '' (a)................................ (aa) The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such, evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed." ;